Citation Nr: 9827410
Decision Date: 09/14/98 Archive Date: 09/17/98
DOCKET NO. 98-00 055A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to compensation under 38 U.S.C.A. § 1151 for
herniated nucleus pulposus, lumbosacral spine.
2. Entitlement to compensation under 38 U.S.C.A. § 1151 for
a right knee disability
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
REMAND
The veteran served on active duty from May 1952 to May 1956.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal from a February 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Reno, Nevada, which denied the claims.
In a March 1992 rating decision, the veteran was granted a
nonservice-connected disability pension for herniated nucleus
pulposus, L3-S1, and a right knee disability. The record
shows that the veteran subsequently received medical
treatment for these conditions on various occasions.
In July 1996, the veteran submitted his claims for
compensation under 38 U.S.C.A. § 1151 for back and right knee
disabilities.
In pertinent part, 38 U.S.C.A. § 1151 provides that, where
any veteran shall have suffered an injury, or an aggravation
of an injury, as the result of hospitalization, medical or
surgical treatment, not the result of the veteran's own
willful misconduct, and such injury or aggravation results in
additional disability or in death, disability compensation
shall be awarded in the same manner as if such disability,
aggravation, or death were service connected.
With respect to his herniated nucleus pulposus, lumbosacral
spine, the veteran contends that the aggravation occurred
while was undergoing VA authorized physical therapy at Sports
West, in Reno, Nevada. He asserts that he was swimming at
this facility, and his knees began to hurt. As he was
climbing out of the pool on the deep end ladder, his knee
reportedly gave way and he fell, twisting his back.
In regard to his right knee disability, the veteran maintains
that he injured the knee while riding a stationary bicycle as
part of his physical therapy at the VA Medical Center (VAMC)
in Loma Linda, California. The veteran has also reported
that his knee gave out while practicing doing things in the
bathroom, as well as the above incident during physical
therapy at the Sports West facility.
After the veteran’s claims file was transferred to the Board
for adjudication of the issues on appeal, notice was received
in July 1998 that the veteran had filed a tort claim against
the VAMC. This claim is apparently related to the issues
currently on appeal. The RO requested that the veteran’s
claims file be returned in order for the Regional Counsel to
prepare a response to the tort claim.
In September 1998, the Board received a “Motion to Submit
Newly Found Evidence” from the veteran. This evidence
consisted of medical records which covered the period from
April 1997 to February 1998. The veteran’s “Motion” does
not appear to waive his right to have that “newly discovered
evidence” initially considered by the RO. Any pertinent
evidence submitted by the veteran or representative that is
accepted by the Board must be referred to the RO for review
and preparation of a supplemental statement of the case,
unless this procedural right is waived by the appellant. See
38 C.F.R. § 20.1304(c) (1997). Accordingly, this claim must
be returned to the RO for consideration of the evidence
submitted by the veteran in September 1998.
As the veteran’s tort claim could affect the issues on
appeal, the Board also finds that the claims folder must be
returned to the RO for preparation of a response to the tort
claim.
For the reasons stated above, this case is REMANDED for the
following:
1. The RO should refer the records
assembled for appellate review, including
the veteran’s claims folders and medical
folders, to the Regional Counsel in San
Francisco, California, for preparation of
a response regarding the veteran’s tort
claim against the VAMC. As this claim
may have an impact regarding the issues
on appeal, the Regional Counsel is
requested to provide documentation
regarding the status of the tort claim
after it is finished with the claims
folders and medical folders.
2. After the Regional Counsel has
prepared its response to the tort claim,
the RO should readjudicate the issues on
appeal in light of any additional
evidence added to the records assembled
for appellate review, including the
“newly discovered evidence” submitted
by the veteran.
If either or both of the benefits requested on appeal are not
granted to the veteran’s satisfaction, the RO should issue a
supplemental statement of the case. A reasonable period of
time for a response should be afforded. Thereafter, the case
should be returned to the Board for final appellate review,
if otherwise in order. If the file is returned to the Board,
it must contain documentation detailing the status of the
veteran’s tort claim against the VAMC. By this remand, the
Board intimates no opinion as to any final outcome warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Gary L. Gick
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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